Tough justice or soft touch in Koori Court?

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The concept of black justice is winning over many, but others still aren't convinced. By Jewel Topsfield and Marc Moncrief.

Shannon Atkinson was drunk when he threatened his partner's mother with a carving knife. "I'm going to carve you up. Come on, I'll kill you," he shrieked in the small hours of the morning.

Neighbours managed to wrestle the knife away but Atkinson grabbed another one from the kitchen and flung it at his mother-in-law, the blade snapping as it ricocheted off a steel fence behind her head.

Six months later Atkinson finds himself in the Shepparton Koori Court before a magistrate, flanked by tough-talking Aboriginal elders "Aunty" Merle Bamblett and "Uncle" Colin Walker.

"I think you've got a problem with drink. We're all big men when we drink," Walker says, stony-faced.

He looks at the squirming young man, who stares at the floor. "You're talking to an elder; I want you to look me in the eye! Shannon, women play a big role in the Aboriginal community. You must remember that without women our community would be down the drain, and so would our little children. Women are not to be knocked around; they are to be respected."

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Atkinson, a scrawny youth in a tracksuit, mutters assent.

"You've got to listen to those words," warns magistrate John Murphy as he sentences Atkinson to 100 hours of community work. "Good luck with your life."

Monday will be the second anniversary of Victoria's first Koori court. The controversial legal experiment was introduced in Shepparton after recommendations from many reports, including the Royal Commission on Aboriginal Deaths in Custody, that the legal system be made less alienating for Aboriginal people. Under the scheme, Aboriginal offenders can choose to have all but the most serious crimes heard as part of a discussion before a magistrate and a panel of Aboriginal community members.

Some critics have dismissed the scheme as a soft option. Others say it risks enshrining an apartheid-style justice system, with one standard for blacks and another for whites. The results, however, have so exceeded expectations that even the sceptics are taking note.

August 10 marks the anniversary of Bamblett's "death". It was her daughter's wedding day, and Bamblett drank until her heart stopped. "I was an alcoholic," she says. Doctors brought her back and now the 70-year-old says it is her mission to straighten her people out. "You can't sit in judgement unless you have walked in their shoes."

Drugs and alcohol are scourges of Aboriginal communities. Bamblett believes the Koori Court attacks the causes of such despair by appealing to a distinctly Aboriginal pride and integrity. Before the introduction of the court, she says, her people were intimidated and confused by the white legal system. She rejects suggestions that the Koori Court is an easy way out, saying that some blacks prefer to go through the white justice system than face the shaming before their peers. But those who do choose to sit at the table can leave with their lives turned around.

Top: Koori justice officer Daniel Briggs works in Shepparton's Koori Court.
Centre: Aboriginal elders "Uncle" Colin Walker and "Aunty" Merle Bamblett with magistrate John
Murphy in the court.
Bottom: Graham Wigg, of Shepparton police, says
some of his 100 officers were initially sceptical of the Koori Court. But at a review only one raised concerns.Pictures:Michael Clayton-Jones

As of April, when figures were last collated, 132 offenders had appeared before the court in Shepparton, 12 of whom had reoffended. The pilot program was expanded to Broadmeadows in March last year and a circuit Koori Court, which incorporates Warrnambool, Portland and Hamilton, was introduced early this year.

Attorney-General Rob Hulls says Koori courts will be introduced in Mildura and Gippsland next year. He is also planning a Koori Children's Court next year, to tackle the reoffending rate among Koori youths (65 per cent compared with 47 per cent for non-indigenous youths).

The Koori Court in Shepparton sits once a fortnight. In the corner of the courtroom hang the Aboriginal, Torres Strait Islander and Australian flags, and Koori art adorns the walls. Any Aborigine or Torres Strait Islander who pleads guilty to an offence that can be heard by a magistrates court - with the exception of family violence and sexual assault - can appear before the Koori Court. The magistrate steps down from the bench to join two Aboriginal elders or respected people in a robust discussion with the offender, his or her family and an Aboriginal justice worker. The public is welcome.

There is no bowing, and legal jargon is discarded in favour of plain talking. Although the magistrate retains the ultimate sentencing power, the elders address the offender and everyone is encouraged to have a say. Koori justice officer Daniel Briggs says his role is to work with defendants on underlying issues such as drug and alcohol addiction. Rehabilitation or counselling often forms part of the sentence.

Hulls says he became aware of just how intimidating the justice system was for indigenous people while working as a lawyer in Far North Queensland. On one occasion, an elderly Aboriginal man who was the sole witness to a fatal car smash was called to give evidence at an inquest in Mount Isa. "He got into the witness box, looked around the court, saw a white police officer, a white defence counsel and a white magistrate and, when asked what he had seen, said 'I'll plead guilty'," Hulls says.

According to a recent report from the Australian Institute of Criminology, indigenous courts such as the Koori courts in Victoria, the Nunga courts in South Australia, the Murri courts in Queensland and Circle Sentencing in NSW are transforming our justice system.

"The black robe appears to be deferring to the black face, and at the same time, indigenous people are embracing portions of white law," the report says. But it warns that the perception that penalties are more lenient than in a regular court could threaten these practices politically.

Last month Police Chief Commissioner Christine Nixon addressed police in Warrnambool after officers anonymously told the local newspaper that Koori courts were a "soft option". Critics have voiced similar concerns.

Leanne Daley, a tutor at the Certificate General Education Adult Centre and a waitress at the Full House Hotel in Shepparton, says the dual system entrenches racial tensions. Every weekend, Daley watches young Aborigines flood into the bar, drink too much and abuse her customers. "They feel they can do whatever they like because they have their own system."

Clearly, however, the old system is not working. According to the Australian Bureau of Statistics, Aboriginal adults are 15 times more likely to be jailed than non-indigenous adults. Fifty-one per cent of indigenous prisoners have at least two spells in jail compared with 39 per cent of non-indigenous prisoners. A 2002 Aboriginal and Torres Strait Islander survey showed that 20 per cent of Victorian Kooris had used legal services in the previous year. Seventeen per cent had been arrested and 7 per cent incarcerated in the past five years.

Last year, days after the first sitting of the Koori Court in Broadmeadows, prominent Melbourne Queen's counsel David Galbally said he believed Koori courts had the potential to create "a greater division between Aboriginal people and the rest of the population".

Today Galbally admits to being a convert, albeit a cautious one. "Maybe it is working. Maybe my views were wrong. Maybe it's what the Aboriginal community needs: something more than just tokenism but a realisation of what their needs are."

Shepparton police District Inspector Graham Wigg says some of his officers were also sceptical at the outset. They were unconvinced things would change. So when the Koori Court came up for review four months ago, Wigg sent an email to the 100 officers in his charge. "If you have got any issues or problems with the Koori Court, stick it under my door," he told them. "No need to put your name on it. Give me any grizzles, gripes, bitches, whinges - any problems you have got with the court. I got one, out of 100 members."

The way Koori teenager Christopher Mansfield tells it, he has been on the grog and smoking dope for most of his life. At seven, he smoked his first joint. "Was it mixed in with your baby's milk, mate?" teases his lawyer, Brian Birrell.

Mansfield casts down his soft eyes and shrugs sheepishly. "When you grow up around it, mate . . . look, if there's a beer sitting in front of you, you're going to drink." The two share a chuckle.

Two years ago no one was laughing. Mansfield, 18, had been to court more times than he cares to remember.

As his consumption of amphetamines, cannabis and alcohol spiralled out of control, he notched up the offences - breach of community-based order, assault, theft of motor car, being drunk and disorderly . . .

"He would have drunk himself to death," Birrell says bluntly.

Then, Mansfield found himself before the Koori Court. He credits the experience with transforming his life.

These days he is off the drugs, only drinks occasionally and has a girlfriend, a job and the respect of the black and white communities in his home town of Shepparton.

He says he was shamed into reassessing his life by Bamblett, a close friend of his grandmother's, and Walker.

"In our culture we've got to respect the elders," Mansfield says. "So by putting them in (the court) it makes the person have a lot more respect, not only for them but for the judge too, because they're beside him."

Mansfield is still facing armed robbery charges in the County Court and is not out of the woods yet. But Birrell says the difference in his client is palpable.

"The elders said 'Look, you are bringing unstuck your race'," Birrell says. "He turned his life around."